A divorce will be granted by the courts once an irretrievable breakdown of marriage is proved by a period of 12 months of continuous separation.
It doesn’t matter who is to blame for the breakdown.
On proving to the Court that you meet all divorce criteria, a divorce will be granted. You cannot however re-marry until 1 month has passed after the divorce was granted – when the divorce becomes ‘absolute’.
Incidentally, you don’t have to wait until your divorce is finalised before you can settle your financial and parenting arrangements. This can be done at separation, either by agreement or application to court. You can settle and even finalise property issues during your marriage, by entering binding financial agreement. On the subject of financial agreements, parties can even enter financial agreements before the marriage, through what is colloquially referred to as ‘Pre-nups.’ Talk to us today for more information about this.
It is important to note that once a divorce is finalised, there is a 12-month limitation period for you to apply for a property settlement or spousal maintenance. An extension of time can be made to the Court, but certain criteria must be satisfied before permission is granted.
An application for a divorce can be made if:
You are an Australian citizen.
- Regard Australia as your home and intend to live in Australia indefinitely.
- If you ordinarily live in Australia and have done so for 12 months immediately before filing for divorce.
- You can prove to the court that you and your spouse have lived separately and apart for at least 12 months and there is no reasonable likelihood of resuming married life (which is the only legal requirement). On this point, separation can be deemed to have occurred if you and your ex-partner remain living at the same address.
It’s generally an easy process and you can make the application without the assistance of a lawyer. However, this is complicated if there are children of the marriage under 18. That is, the court must be satisfied that suitable arrangements have been put in place to care for them.